[1] Whether it is against the essence of the local autonomy system guaranteed by the Constitution or the principle of prohibition of comprehensive delegation, in Article 4(3) through (7) of the Local Autonomy Act that does not specifically stipulate the substantive criteria for determination or consideration of the determination or decision concerning the attribution of reclaimed land under the jurisdiction of the Minister of Public Administration and Security and its affiliated

[2] Whether the Minister of Public Administration and Security and its affiliated commission have a wide discretion in establishing a local government to which reclaimed land belongs (affirmative), and the limit of such discretion

[1] Articles 117, 118(1), 120(2), 122, and 123(2) of the Constitution of the Republic of Korea; Article 4 of the Local Autonomy Act / [2] Article 4(1) and (3) of the Local Autonomy Act; Article 27 of the Administrative Litigation Act

[2] Supreme Court Decision 2010Hu73 decided Nov. 14, 2013 (Gong2013Ha, 222)

Head of Nam-gu Incheon Metropolitan City (Bae, Kim & Lee LLC, Attorneys Song Song-chul et al., Counsel for the defendant-appellant)

The Minister of Public Administration and Security (Attorney Seo-young et al., Counsel for the defendant-appellant)

The head of Yeonsu-gu Incheon Metropolitan City and one other (Law Firm LLC, Attorneys Go Won-seok et al., Counsel for the plaintiff-appellant)

October 15, 2020

The plaintiff's claim is dismissed. The plaintiff is assessed against the plaintiff, including the part arising from supplementary participation.

The Defendant’s decision on December 30, 2015 as determined by the Yeonsu-gu Incheon Metropolitan City on the part inside the ship connecting each point in the attached Form 1 through 13, and 1 of the attached Form 1 of the Incheon New Port 1-1 container terminal section, the reclamation of which was completed in the area subject to reclamation of 10 Section of Incheon B, which was conducted by the Defendant in December 30, 2015, and the local government to which the portion of the reclaimed land corresponding to the part on the ship connecting each point in the attached Form 1 through 50, and 1 of the Incheon New Port

1. The background and summary of the decision of this case

The following facts are not disputed between the parties, or may be acknowledged by taking into account the whole purport of the pleadings as a whole in Gap evidence 1, 2, and Eul evidence 2-1 and 2.

A. From 1996 to 2020, the Incheon Metropolitan City Yeonsu-gu Incheon Metropolitan City Planning Committee for the reclamation of the Incheon Songdo District is under the jurisdiction of Yeonsu-gu Incheon Metropolitan City (hereinafter “ Yeonsu-gu Incheon Metropolitan City”) in which part of the 1 to 8 and 9 sections of the 1 to 1 to 202 are the project that is developed by reclaiming the public waters of 53.40 m

B. On March 20, 2015, the chief of the Incheon Regional Maritime Affairs and Fisheries Office requested the Defendant (the Minister of the Interior before modification: the Minister of the Interior) to determine the local government to which reclaimed land belongs, based on Article 4(4) of the Local Autonomy Act, with respect to the section of the Incheon New Port Rest, the reclamation of which has been completed, among the ten sections of the Incheon Bridge, on May 14, 2015.

C. On December 21, 2015, the Central Dispute Mediation Committee for Local Governments (hereinafter “Committee”) under the jurisdiction of the Defendant to which the local government belongs is determined as the Yeonsu-gu Incheon Metropolitan City, by comprehensively taking account of the following circumstances, the part of the Incheon New Port 1-1 container terminal and the part of the sea rest area for the Incheon New Port (hereinafter collectively referred to as “instant reclaimed land”) where reclamation is completed among the 10 sections of the Incheon Bridge area.

① Since the Incheon Songdo District is designated as a free economic zone and is organically linked and developed, the entire development plan for the Songdo International City shall be taken into consideration when determining a local government to which the reclaimed land belongs. Since the Yeonsu-gu Incheon Metropolitan City already has jurisdiction over 1-8 and 9 sections, it is desirable to designate the 10 section new port as the jurisdiction of Yeonsu-gu Incheon Metropolitan City in terms of the efficiency of the utilization of national land.

② The residents of the Incheon Songdo District are expected to be managed in an integrated manner, and if the local government having jurisdiction over the Songdo District is different, it is likely that not only residents but also domestic and foreign investors may be disadvantaged.

(3) The Nam-gu Incheon Metropolitan City asserts that there exists an administrative practice under the jurisdiction of Nam-gu Incheon Metropolitan City, Nam-gu, Incheon Metropolitan City, on the ground that 10 construction districts and 10 construction districts buried the sea in front of the Southern-dong-gu, and there were 6 lots of land, such as Songdo-gu 7 and 111 construction sections prior to the execution of reclamation works, but such administrative practice is difficult to deem that there exists such administrative

4. The development plan is being formulated and implemented in consideration of the provision of integrated administrative services.

D. On December 30, 2015, the Defendant decided to determine a local government to which the instant reclaimed land belongs as the Yeonsu-gu Incheon Metropolitan City (hereinafter “instant decision”) and notified the Plaintiff, the Intervenor, and the head of Yeonsu-gu Incheon Metropolitan City, Yeonsu-gu, Incheon Metropolitan City.

E. On January 13, 2016, the Plaintiff filed the instant lawsuit seeking revocation of the instant decision with the Supreme Court.

2. The assertion and judgment

A. As to the assertion that Article 4 of the Local Autonomy Act is unconstitutional

1) The plaintiff's assertion

If the purport of excluding the criteria for the maritime boundaries of this case under Article 4(3) through (7) of the Local Autonomy Act is to prevent the defendant from arbitrarily determining the jurisdiction of the local government without any basis, and thus, it is unconstitutional law that infringes on the essence of the local autonomy system guaranteed by the Constitution and goes against the principle of prohibition of comprehensive delegation. The decision of this case is unlawful.

2) Determination

A) Article 117(1) of the Constitution of the Republic of Korea provides that local governments shall handle affairs concerning the welfare of residents, manage property, and establish regulations concerning autonomy within the scope of statutes (Article 117(1)). While generally guaranteeing local governments’ autonomous administration, the types of local governments shall be prescribed by Act (Article 117(2)), and matters concerning the organization and operation of local governments shall be prescribed by Act (Article 118(2)). (See Constitutional Court en banc Order 2015Hun-Ma3, Jul. 16, 2020).

B) Article 4(1) of the Local Autonomy Act provides that “The names and jurisdictions of local governments shall be as before, and the names and jurisdictions of local governments shall be changed, or the abolition, establishment, division, or consolidation of local governments shall be prescribed by the Presidential Decree: Provided, That the boundary change and the alteration of Chinese names shall be prescribed by the Presidential Decree.” Article 4(3)1 of the Local Autonomy Act provides that a local government to which a reclaimed land under the Public Waters Management and Reclamation Act (hereinafter “ reclaimed land”) belongs shall be determined by the Minister of Public Administration and Security pursuant to the provisions of paragraphs (4) through (7), and Article 4(4) through (7) of the same Act provides that the Minister of Public Administration and Security and its affiliated committees shall observe the procedures to be followed when making a decision on the attribution of reclaimed land under the jurisdiction of the Ministry of Public Administration and Security and its affiliated committees, and the substantive standards and factors of the decision and decision are not specifically

C) According to Article 67 of the Act on the Establishment, Management, etc. of Spatial Data, Article 58 subparag. 17, Article 18 subparag. 18, and Article 19 of the Enforcement Decree of the same Act, public waters on land are waters or waterways existing on “land”, the object of real rights, and are determined by the competent local government’s organization on the basis of the land. However, as the bottom floor of public waters on sea is not considered as land which is the object of real rights, land at sea is not considered as land subject to real rights, it constitutes a case where a new land that had not existed before is created upon the execution of reclamation works, and land newly created is not included in the previous local government. Accordingly, the State shall determine its competent local government in the form of law under the main sentence of Article 4(1) of the Local Autonomy Act or under Article 4(3) of the Local Autonomy Act, and it does not belong to any local government until that time (see Constitutional Court en banc Decision 2015Hun-Ga36, Jul. 16, 20202).

D) In full view of the fact that the jurisdiction of a local government does not fall under the core area of the local autonomy system guarantee, but falls under the scope of the legislative formation authority; that is, the local government is determined only by the decision of the State in the case of a maritime public waters reclaimed land; that is, the State should take into account the efficient and balanced utilization, development, and preservation of the land (Articles 120(2) and 122 of the Constitution), balanced development between regions (Article 123(2) of the Constitution), and balanced development between regions (Article 123(2) of the Constitution) when it determines a local government having jurisdiction over a maritime public waters reclaimed land, and that it is difficult to provide more specific criteria for consideration or substantive determination in law is difficult in legislation and technical aspects, the above argument by the Plaintiff cannot be deemed as infringing on the essence of the local autonomy system, even if it did not specifically stipulate the substantive criteria for determination or consideration of the decision or determination on the reversion of the reclaimed land jurisdiction of the Ministry of Public Administration and Security and its affiliated committees. Therefore, the Plaintiff’s assertion is without merit.

B. As to the assertion on the application of the principle of long-distance median line

1) The plaintiff's assertion

According to the Constitutional Court en banc Order 2010Hun-Ma2, July 30, 2015, “the principle of street median line” is the most basic factor to be considered when defining the maritime boundaries of public waters. Accordingly, the reclaimed land in this case should belong to the jurisdiction of Nam-gu Incheon Metropolitan City, if the boundary line between Yeonsu-gu and Southern-dong is based on the line extending the boundaries of the land along the straight line to the sea.

2) Determination

The term “the principle of light distance median” means that the connection line between the points located on the same distance from the nearest point of the coastline of each local government is to be taken into account when defining the maritime boundary of public waters (see Constitutional Court en banc Decision 2010Hun-Ma2, Jul. 30, 2015). However, as seen earlier, the term “marine public waters” and “reclaimed land” completely differ from the legal nature; the use of public waters and the use of reclaimed land differ from the method and content thereof; thus, the standard of maritime boundary of public waters cannot be applied to the determination on the jurisdiction of reclaimed land (see Constitutional Court en banc Decision 2015Hun-Ma3, Jul. 16, 2020). Therefore, the Plaintiff’s assertion is without merit.

C. As to the assertion of deviation and abuse of discretionary power

1) The plaintiff's assertion

When the Defendant exercises the discretionary power to decide on the jurisdiction of reclaimed land, it should appropriately balance the interests of the relevant local governments and their residents. However, this case’s decision is erroneous in the misapprehension of discretionary power by failing to take into account the important factors or omitting legitimacy and objectivity in balancing the interests of the factors to be considered in the following point.

(1) The reclaimed land of this case which is geographically adjacent to the sea in front of the south East-gu Incheon Metropolitan City shall be under the jurisdiction of the Nam-gu Incheon Metropolitan City.

(2) Section 9 section logistics complex managed by Yeonsu-gu Incheon Metropolitan City is different from ten sections from those that will function as the hinterland logistics complex of the Incheon New Airport due to the hinterland of an international passenger terminal. The transmission-do international city is divided into respective sections of construction, so it is unnecessary to match its jurisdiction with other sections of construction, and it is possible to efficiently connect the facilities located in the land area of the Southern-do Incheon Metropolitan City with those located in the land area of the Southern-do by jurisdiction over the reclaimed land of this case, and the efficiency of utilization of the national land is increased thereby.

③ According to the instant decision, the entry route from the residents of the Nam-gu Incheon Metropolitan City to the sea is obstructed.

(4) The inefficiency of administration shall be increased as the area and population of Yeonsu-gu Incheon Metropolitan City increases substantially compared to that of the previous districts due to the incorporation of the Songdo District.

⑤ There is no data to verify the intention of residents of the Songdo District, and the damage caused by the loss of public waters previously under the jurisdiction of the Seodong-gu Incheon Metropolitan City as the reclaimed land of this case was not considered properly.

2) Relevant legal principles

In light of the legislative intent of Article 4 of the Local Autonomy Act (amended by Act No. 9577 of Apr. 1, 2009) which newly established a new system to determine a local government to which reclaimed land belongs by the Minister of the Interior and Safety, the validity of the customary law with regard to the jurisdiction of reclaimed land was limited to the amendment of the above Local Autonomy Act, and the Minister of the Interior and Safety and its affiliated committees have a wide range of discretion when determining a local government to which reclaimed land belongs. However, the discretion of formation is not unlimited, but is not unlimited, and there is a limit that should be compared and balanced by comprehensively considering all relevant interests. The Minister of the Interior and Safety and the affiliated committees of the Ministry of the Interior and Safety and their affiliated committees should be deemed to be unlawful in cases where there is omission of matters to be included in those interests, or where there is lack legitimacy and objectivity even though the benefits are to be considered, the determination of jurisdiction should be deemed to be unlawful. Considering the purport of the amendment of the Local Autonomy Act, the Minister of the Interior and Safety and its affiliated committees should consider the following matters:

(1) The competent authority shall be determined in consideration of the detailed land use plan of each area within reclaimed land and organic use relationship with neighboring areas, and shall ensure efficient use of new land.

(2) A reasonable boundary shall be established based on the situation in which reclaimed land is used, in consideration of the shape of connection between reclaimed land and another local government's jurisdiction, connection and distance between reclaimed land and another local government's jurisdiction, and the location of natural features, such as roads, rivers, canals, etc., which can be easily recognized as boundary within the jurisdiction of reclaimed land.

(3) The efficiency of administration shall not be significantly impaired considering various factors, such as the connection and distance between reclaimed land and neighboring local governments, the installation and management of infrastructure, such as roads, ports, electricity, waterworks, telecommunications, etc., the prompt provision of administrative services, and the ability to cope with emergencies.

(4) In consideration of the transportation relationship between reclaimed land and neighboring local governments, accessibility from outside, etc., a local government’s inclusion in the jurisdiction of the residents of reclaimed land in the residential and living convenience shall be considered.

(5) Since a neighboring local government and residents lose adjacent public waters due to the execution of reclamation works, the historical and practical interests of local governments that lose such public waters as a result thereof, and the basis of living and economic interests of their residents, shall be considered.

(6) In cases of a reclamation project, the whole reclamation project plan of which has been formulated and implemented in a phased and phased manner according to the Gu’s plan, including administrative support for the part of which reclamation has been completed, even if it is inevitable to first determine the attribution of the jurisdiction over a part of the area where reclamation has been completed, the determination on attribution of such part of the jurisdiction may also have considerable impact on the determination on the remainder of the area scheduled for reclamation. Therefore, even in cases where the determination on attribution is made only for a certain area, the determination on attribution of jurisdiction shall be made by taking into account the framework of the overall area of the area scheduled for reclamation, taking into account the overall implementation plan of the relevant reclamation project, the land use plan and purpose of the reclaimed area, the plan for the development and use of harbors, etc. If the determination on attribution of jurisdiction inappropriate in light of the overall Gu’s jurisdiction is partially made, disputes may arise between local governments on the whole implementation plan of the relevant reclamation project and the detailed land use plan, etc. of the reclaimed area, and it is not desirable that the State and the local community increases social and economic expenses, and social costs are not desirable.

3) Determination

Examining the following circumstances in light of the legal principles as seen earlier: (a) evidence Nos. 1 and 2; (b) evidence Nos. 4-3 and 4-2-2; (c) evidence Nos. 1, 3, and 5; and (d) evidence Nos. 1, 3, and 5; and (b) evidence Nos. 6-1, 2, 8, and 9-1, and 9-2; and (c) the overall purport of pleadings, the Defendant’s decision in the instant case cannot be deemed as an unlawful disposition that deviates from or abused discretionary power, since it is difficult to view that the instant decision constitutes a case where: (a) the Defendant did not compare and balance all relevant interests; (b) omitted any matters to be included in the subject of consideration of the balancing of interests; or (c) omitted any matters to be included in the subject of

(1) According to the Incheon Free Economic Zone International City Development Plan for Songdo, the Songdo International City introduced the concept of strategic cluster with 7 days in Songdo-dong, Yeonsu-gu, Incheon Metropolitan City, and developed high-tech industrial clusters (5,7,11 sections), Songdon City (6,8 sections), logistics complexes (9,10 sections), etc. with the aim of creating a special zone where technology, human resources, enterprises, finance, logistics, etc. can be integrated. From the beginning, the development was conducted in order according to the land utilization plan, etc. to create a unified economic special zone by creating the whole Songdo international city as a single district. The nine sections function as the harbor hinterland complex and the ten sections containing the reclaimed land of this case, including the reclaimed land of this case, need to be integrated management and regulation to provide convenience in investment and business activities of foreign investment enterprises.

② Since the Yeonsu-gu Incheon Metropolitan City directly manages domestic wastes, sewerage, parks, green areas, outdoor advertisements, roads, etc. closely related to the livelihood of residents among urban infrastructure in the Songdo International City from December 31, 2015, the relevant reclaimed land in this case can be managed by the Yeonsu-gu Incheon Metropolitan City.

③ Although the reclaimed land of this case appears to be close to the Southern-gu Incheon Metropolitan City in a straight line, considering the relationship between the LNG receipt base and its access road (on the port air-going), as well as the surrounding structures and infrastructure, such as the management of the training Gu of Incheon Metropolitan City, the reclaimed land of this case is also effective under the jurisdiction of the Yeonsu-gu Incheon Metropolitan City.

④ The Yeonsu-gu Incheon Metropolitan City already has jurisdiction over the 1-8 sections and 9 sections of the Songdo International City, but there is no obvious material to deem that the Incheon Metropolitan City Yeonsu-gu's administrative capacity is insufficient in an administrative aspect. Rather, if the Yeonsu-do International City is divided into Yeonsu-gu and Namdong-gu and falls under the jurisdiction, the main agent in charge of administrative affairs in the district is required to be changed to increase in in in efficiency.

⑤ According to the newspaper article (No. 3) stating that “Yindo residents participated in the signature of approximately 77% of the Yeonsudo residents who agreed to the jurisdiction of the Songdo International City,” it can be deemed that the residents of Songdo International City integrated and managed the Songdo International City including the reclaimed land in this case.

(6) There is no obvious data to deem that residents of Nam-gu Incheon Metropolitan City have conducted fishery activities, etc. in the area where the reclaimed land, etc. of this case is located or used as a marine entry into and exit from the area.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the costs of lawsuit are assessed against the losing party, including the part arising from participation in the assistance. It is so decided as per Disposition by the assent of all participating Justices.

[Attachment 1] Drawings: Omitted

[Attachment 2] Drawings: Omitted

Justices Noh Jeong-hee (Presiding Justice)